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Split Wisconsin Supreme Court rules drop boxes are illegal, voters must mail or hand-deliver absentee ballots to clerk

This article was originally published in Madison.com

Absentee ballot drop boxes, which were used in hundreds of communities during the COVID-19 pandemic, are now illegal in the state except in clerk’s offices, a divided Wisconsin Supreme Court ruled just one month before the Aug. 9 primary.

In a 4-3 decision Friday, the state’s high court upheld a lower court’s January ruling that absentee ballots must be delivered by mail or in person to a local clerk’s office or designated alternate site. However, the court did not rule on whether voters can have someone else handle their ballot on its way to a mailbox.

“The Aug. 9 primary is one month away, and absentee ballots are out. Yet the court failed to make a timely decision or provide voters with needed guidance including rules around assistance in mailing ballots,” said Debra Cronmiller, executive director of the League of Women Voters of Wisconsin, one of the groups involved in the lawsuit. “These changes to our election rules are especially troubling for voters with disabilities, the elderly, and folks working 9 to 5 jobs who cannot get to the clerk’s office during their open hours.”

Writing for the majority, conservative Justice Rebecca Bradley said only the state Legislature, and not the Wisconsin Elections Commission, has the authority to permit the use of absentee ballot drop boxes. State law is silent on the use of the secure ballot drop boxes.

“WEC’s staff may have been trying to make voting as easy as possible during the pandemic, but whatever their motivations, WEC must follow Wisconsin statutes,” Bradley wrote. “Good intentions never override the law.”

Bradley was joined in the ruling by fellow conservative justices Patience Roggensack, Annette Ziegler and Brian Hagedorn, who has often been a swing vote on the seven-member court.

Liberals dissent

Liberal Justice Ann Walsh Bradley blasted the majority’s decision as one that “blithely and erroneously seeks to sow distrust in the administration of our elections and through its faulty analysis erects yet another barrier for voters to exercise this ‘sacred right.’”

“Although it pays lip service to the import of the right to vote, the majority/lead opinion has the practical effect of making it more difficult to exercise it,” Walsh Bradley added. “Such a result, although lamentable, is not a surprise from this court.”

She was joined by fellow liberal justices Rebecca Dallet and Jill Karofsky. The Bradleys are not related.

The state Supreme Court’s ruling comes four months before a high-stakes Nov. 8 election for both major political parties. Democrats are seeking to oust U.S. Sen. Ron Johnson, R-Oshkosh, and Republicans have their sights set on defeating Democratic Gov. Tony Evers, who is seeking a second term.

Johnson, as well as GOP gubernatorial candidates Tim Michels and Rebecca Kleefisch, praised the Supreme Court’s decision.

“This decision is a big step in the right direction,” Johnson said.

Escalating GOP skepticism of the 2020 election is fueled in part by pressure from former President Donald Trump, who continues to push false, unfounded claims of fraud and still holds considerable sway over the party nationwide.

“Today’s decision is another in a long line of Wisconsin Republicans’ successes to make it harder for Wisconsinites to exercise their right to vote, to undermine our free, fair, and secure elections, and to threaten our democracy,” Evers said in a statement.

While the Supreme Court’s conservative majority made clear that drop boxes are not allowed in the state, the court’s decision not to rule on whether or not someone can assist a voter by placing their absentee ballot in a mailbox could open the door to new lawsuits on the matter.

“The court simply decided not to address what disabled persons who cannot personally mail things or travel to their clerk’s offices are supposed to do,” Ann Jacobs, a Democratic member of the state’s bipartisan Elections Commission, tweeted Friday. “So expect additional litigation on this point. Saying the issue is ‘undeveloped’ in the briefs simply elides the discriminatory outcome of the decision.”

2020 residue

The ongoing battle over the longstanding use of drop boxes has persisted since the 2020 election, due in part to unfounded claims of election fraud by Trump, who lost Wisconsin to President Joe Biden by about 21,000 votes.

Proponents of the free-standing, mailbox-like structures have said they are a secure and safe voting option, especially during the COVID-19 pandemic. At the same time, some Republicans argue that adding any unauthorized method for returning ballots opens the door to fraudulent activity, despite multiple reviews of the 2020 election finding no evidence of widespread fraud.

The case stems from a request by the conservative Wisconsin Institute for Law and Liberty on behalf of two Milwaukee voters asking the state’s high court to take up the matter after the District 4 Court of Appeals stayed a ruling by Waukesha County Circuit Judge Michael Bohren that barred the use of absentee ballot drop boxes except in a clerk’s office.

The state Supreme Court in January ruled 4-3, with Hagedorn joining the court’s three liberal justices, to allow the use of the free-standing, mailbox-like drop boxes in the February primary. The court later denied a request to extend the stay and allow use of the boxes through the April 5 election, with Hagedorn joining fellow conservative justices on the ruling.

Earlier guidance

A focal point of the case targeted guidance issued by the bipartisan Wisconsin Elections Commission in early 2020 to allow election clerks to use their discretion when determining whether to make use of drop boxes. Hundreds of municipal clerks made use of the boxes that year when there still wasn’t a vaccine for COVID-19 and public health officials were warning against large gatherings, like at polling places.

At the same time, the large number of absentee ballots requested that year, combined with cutbacks at the U.S. Postal Service, led many to worry their ballots wouldn’t make it back in time if they were mailed. More than 40% of voters cast ballots absentee in 2020.

The Wisconsin Elections Commission rescinded the guidance in February following Bohren’s ruling.

Bohren ruled in January that state law only allows absentee ballots to be delivered through the mail or in person at a local clerk’s office. He also asserted that delivering an absentee ballot on behalf of another individual, even someone who is unable to deliver their own ballot, is illegal. Bohren’s ruling was widely panned by voting rights and disability advocacy groups for making it harder for elderly and disabled residents to vote.

“The right for voters with disabilities to have assistance from a person of their choice is protected by federal law,” said Barbara Beckert, director of External Advocacy with Disability Rights Wisconsin. “Nothing in this decision changes federal protections for people with disabilities. Voters with disabilities who need ballot delivery assistance may want to contact their municipal clerk to ask for a disability-related accommodation.”

WILL president and general counsel Rick Esenberg said the court’s ruling “provides substantial clarity on the legal status of absentee ballot drop boxes and ballot harvesting.”

“While the question of whether an agent may mail an absentee ballot remains open, Wisconsin voters can have confidence that state law, not guidance from the Wisconsin Elections Commission, has the final word on how Wisconsin elections are conducted,” Esenberg added.

Across Wisconsin

Ballot drop boxes were used in at least 43 cities, 46 villages and 156 towns throughout the state in the 2020 election, according to the nonpartisan Legislative Audit Bureau. Many of those were in areas in the northeastern and northwestern parts of the state, where Trump won the vast majority of counties. Eleven states also use the boxes.

Drop boxes were among the supplies Wisconsin’s clerks purchased in 2020 with money from the Mark Zuckerberg-funded Center for Tech and Civic Life, which has also become a target of Republican ire and that of GOP-appointed special counsel Michael Gableman, who has baselessly claimed the Chicago-based group was integral to an illegal conspiracy to boost turnout in Democratic-leaning areas in the 2020 election.

Previous court rulings have found nothing illegal about the more than $10 million in Center for Tech and Civic Life grants distributed to about 214 municipalities in 39 of Wisconsin’s 72 counties, including many solidly won by Trump. Nor did the center turn down grant requests from any of the Wisconsin municipalities that made them. Although, on a per-capita basis, Wisconsin’s five largest, and mostly Democratic, cities received two to four times more money than smaller communities.